The Brookings study cites a litany of benefits that flow from having a high concentration of STEM workers in our local economy. First and foremost, individuals who work in STEM fields do better economically; but they also contribute to a healthier local economy generally, in the form of:

• More innovation
  According to Brookings, "Greater STEM skills at the metro level are strongly associated with higher patents per worker (an indicator of innovation).

• Less unemployment
  And "a lower rate of job losses during the recent recession and early recovery"

• More exports
  As a share of GDP, which Brookings calls "a measure of international competitiveness"

• Higher incomes
  Brookings finds, "The average worker living in the most STEM oriented metropolitan areas realizes an 11 percent boost in real wages compared with those living in the least STEM oriented metropolitan areas."

The findings were part of a broader study of the STEM economy, one intended to look more closely at precisely what type of jobs should be defined as "STEM jobs." According to Brookings, most previous studies suffer from a methodological blindness that only recognizes high-level STEM jobs, largely ignoring STEM positions that require less than a bachelor's degree - jobs that are nonetheless critical to the health of a high-tech economy. Many studies, for example, don't count technicians who install and repair high-tech equipment, because the work often does not require a BA or advanced degree.

Among other noteworthy findings:

• "As of 2011, 26 million U.S. jobs - 20 percent of all jobs - require a high level of knowledge in any one STEM field."

• "Half of all STEM jobs are available to workers without a four-year college degree, and these jobs pay $53,000 on average - a wage 10 percent higher than jobs with similar educational requirements."

• "STEM jobs that require at least a bachelor's degree are highly clustered in certain metropolitan areas, while sub-bachelor's STEM jobs are prevalent in every large metropolitan area."

• "The presence of sub-bachelor's degree STEM workers helps boost innovation measures one-fourth to one-half as much as bachelor's degree STEM workers, holding other factors constant."

The message for policymakers is clear: we need more STEM workers at ALL levels. This is not just good for the individual STEM workers, who tend to earn more - often significantly more - than their non-STEM counterparts; it’s also good for the economy as a whole, generating economic gains that benefit everyone. Think of this as yet another word to the wise, especially to those in Congress who are now considering immigration reform legislation: the benefits of STEM immigration are ripe for the picking, and there's no time like the present!

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FIRN was the brainchild of Pat Hatch, a social entrepreneur who recognized the need for a place where immigrants could ask questions "without feeling stupid." [See What is FIRN?] Now, more than 30 years later, FIRN - which stands for Foreign-Born Information and Referral Network - offers a comprehensive array of services to immigrants from more than 75 countries: services such as immigration counseling, English language classes, interpreting, and referrals to health and human services agencies that assist immigrant clients.

This year, three prominent immigrants received FIRN's American Success Award, honoring their business and professional achievements, and their distinguished contributions to their own ethnic communities - and to the social and economic vitality of Howard County, as a whole.

• Bita Dayhoff fled her native Iran during the revolution, in 1979. She is now president of the Community Action Council of Howard County, which helps low-income residents escape poverty and achieve self-sufficiency.

• Min Kim didn't know a word of English when she emigrated from Korea at age 10. She now runs the International Student and Family Outreach Office for the Howard County Public School System, which provides language services to immigrant students and their parents.

• Dou "Alvin" Zhang, M.D., Ph.D., is a ChineseAmerican internist and cardiologist with a long resume of volunteer service, all aimed at improving the health of the AsianAmerican community in Howard County, and across the state of Maryland.

The 2013 Pat Hatch Award was conferred on Dr. David Anderson, founder and senior pastor at Bridgeway Community Church, a multicultural faith community that is home to 4,000 people from 52 countries. Dr. Anderson's church provides an array of services to the foreign born: education and counseling programs, a food bank, English language tutoring, and citizenship classes, to name a few. As FIRN noted in the program for the awards ceremony, "Dr. Anderson coined the word 'gracism' which is the 'positive extension of favor on other human beings based on color, class, or culture. 'Gracism gives extra goodness to those who are left out, on the fringe, or don't fit in.'"

It's a sentiment that's very much in the spirit of FIRN's founder and guiding light, Pat Hatch, who made a career of welcoming new Americans to the diverse community that Howard County has become. It is also very much in line with the MurthyNAYAK Foundation's goal of helping immigrants to the United States. From all of us here at the Murthy Law Firm: congratulations to this year's honorees! We hope your example will inspire others, just as FIRN has done for so many years!

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Draft Memo on EB5 Issued in December 2011

This recent memo is the finalized version of a draft released by the USCIS in late 2011, as detailed in our December 2011 NewsBrief, USCIS to Improve EB5 Immigrant Investor Program (16.Dec.2011). The USCIS released the draft memo with the intent of having attorneys, applicants, and other stakeholders review the document and provide feedback. The USCIS incorporated much of this feedback into the final version of the memo, which was released on May 30, 2013.

Flexibility for Business Changes After Conditional Residence

One major improvement to the program is an alteration in USCIS's interpretation of the regulations that will provide for greater flexibility when changes occur in an EB5 business. Per the new memo, once a foreign national has been admitted as a conditional resident, based on an approved Immigrant Petition by Alien Entrepreneur (I-526 form), subsequent material changes to the business do not automatically prevent the conditions from being removed at the final I-829 stage. However, if a material change to the business occurs prior to the foreign national's admittance as a conditional resident, then a new I-526 generally is still required. The investor must, in good faith, intend to follow the plan submitted in support of the EB5 visa application. However, this change allows for flexibility to adapt to business realities after admission as a conditional permanent resident.

Clarification on Certain Financing Issues

The memo also provides clarification on a variety of concerns, such as bridge financing and funds held in escrow accounts. In addition, it explains that the EB5 requirements can be met through capital invested in a single enterprise that is then spread across a portfolio of wholly owned businesses.

Improvements for Regional Center Applications

Perhaps the most significant improvements to the program are aimed directly at cases affiliated with designated regional centers, which comprise the vast majority of EB5 filings. The requirements for job creation when investing in a regional center are different from investments in businesses that are not part of the regional center program. The memorandum clarifies the standards to be used when the regional center establishes eligibility for participation in the EB5 program based on projects that are hypothetical.

While it is possible to obtain a designation as a regional center, based on a relatively general description of a hypothetical project, there is some risk to the investor who applies for an EB5 visa based on this type of designation. Investors must set forth specific projects when seeking the EB5 classification when filing the Immigrant Petition by Alien Entrepreneur (I-526). These are scrutinized more closely than situations in which the regional center designation was based on an actual project supported by an appropriately detailed business plan. However, this option can be more realistic from a business perspective and it ultimately provides investors with additional options to consider.

Deference to Earlier Approved EB5s with Exceptions

The memo directs USCIS officers to provide deference to previously approved filings in most situations, and lists the scenarios in which such deference should not be afforded. This direction and clarification should provide increased predictability for EB5 applicants.

Conclusion

The USCIS is continuing efforts toward making the EB5 program more attractive to foreign investors. This is particularly important during periods of economic difficulties and job losses in the United States. While these changes and clarifications are welcome, the implication is not that the EB5 application process is simple or straightforward. To the contrary, it is strongly recommended that foreign nationals consult with qualified attorneys before filing such petitions. The Murthy Law Firm is available to assist foreign investors interested in pursuing permanent residency in the United States via the EB5 program.

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Backlogs Typical in FB2A

This family-based (FB) category is appropriate for foreign national spouses and children of U.S. permanent residents. It is typically used when a foreign national marries someone who is already a lawful permanent resident (LPR). However, this option is also available when one spouse becomes an LPR after the marriage, while the other spouse and/or minor child/ren have not yet acquired LPR status. There are many families in this situation, largely due to rapid and significant swings in the employment-based (EB) cutoff dates.

Often Advisable to File Both EB and FB Cases

As explained in the MurthyDotCom NewsBrief, Strategy to Deal with EB Retrogression: I-130 Family Petition (24.Sep.2012), a foreign national may simultaneously pursue both FB and EB cases in order to increase her/his options and, potentially, reduce the waiting time for visa number availability. Based on predictions made in the July 2013 Visa Bulletin, those who followed the suggestions made in the aforementioned NewsBrief stand to benefit from the FB2A priority date becoming current. This should allow eligible foreign nationals to become U.S. permanent residents through either adjustment of status or consular processing.

Not Too Late to File FB Case

Eligible candidates, who have not yet filed their FB2A cases, may still have time to act, but time is of the essence. Even if the FB2A category becomes current, as predicted, there is no way to know how long the category will remain current, or how far the dates will roll back, if retrogression subsequently occurs. Therefore, the earlier one establishes an FB priority date by properly filing an I-130 petition, the more likely it is that the individual will benefit from the date progression in this category.

Given the uncertainty of cutoff date movement, and the potentially brief periods in which to act on visa bulletin developments, foreign nationals generally should try to establish eligibility for more than one option, if possible. Therefore, even those who hope to benefit in the coming months by the expected movement in the employment-based, second preference (EB2) category for India, as explained in the MurthyDotCom NewsBrief July 2013 Visa Bulletin: EB Cutoff Date Movement Predictions (14.Jun.2013), should consider filing an FB2A case, if possible.

Conclusion

The movement of visa bulletin cutoff dates, and the interplay of the EB and FB options, can be quite complex. What is simple is that, whenever possible, having two options is better than having just one. The Murthy Law Firm is available to guide families who wish to consider the FB2A option and explore what this mean for them.

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Visa Bulletin Summary

Employment-Based, First Preference (EB1)

This category remains current for all countries of chargeability, and is expected to remain current for the foreseeable future.

Employment-Based, Second Preference (EB2)

EB2 is still current, and is expected to remain current for all countries of chargeability, except India and China. China's cutoff date advances to August 8, 2008. The DOS predicts that China's cutoff date will continue to advance by approximately two months each month from August through October 2013.

Predictions of Movement in EB2 Dates for India

The EB2 cutoff date for India remains unchanged at September 1, 2004. However, the DOS expects to move the cutoff date for EB2 India in August and/or September 2013. The DOS did not indicate the expected extent of this long-awaited forward movement in the Visa Bulletin. However, Charles Oppenheim, Chief of the Immigrant Visa Control Unit at the DOS, informed the Murthy Law Firm that his best-case expectation for movement in EB2 India is a cutoff date of February 2008.

The reason for this anticipated movement, as explained by the DOS, is that it appears there will be enough "otherwise unused" numbers in the EB2 category to allow for movement in EB2 India. That is, the DOS can shift visa numbers within EB2 from countries of chargeability with excess numbers to India and China, where there is more demand than supply. This shift generally occurs at the end of the fiscal year, to avoid losing or wasting any visa numbers. Chief Oppenheim stressed that the February 2008 date is purely an estimate of the most favorable potential cutoff date in this category.

Employment-Based, Third Preference (EB3)

The cutoff dates in EB3 for all chargeability areas except those listed, as well as China and Mexico, move forward again to January 1, 2009. The Philippines cutoff date inches forward to October 1, 2006. India's cutoff date also advances, to January 22, 2003.

The DOS predicts that the movement in EB3 all chargeability areas except those listed, as well as China and Mexico, will not continue in the upcoming months. No additional movement is expected, as this category has moved forward by eighteen months in the past three months. EB3 India is expected to have up to three weeks of advancement per month; the Philippines should see up to two weeks forward movement per month for the next few months.

Other Workers Category

The EB3 other workers' cutoff dates continue to match the general EB3 cutoff dates, with the exception of China. The EB3 other workers' category cutoff date for China moves significantly to March 22, 2004.

Employment-Based, Fourth (EB4) and Fifth (EB5) Preferences

These categories remain current for all countries of chargeability. This is expected to continue.

Conclusion and Predictions

The July 2013 Visa Bulletin includes some encouraging news for EB2 India, and the hope that the cutoff date may move from the September 1, 2004 date that has been in place for all of FY13. MurthyDotCom readers will be updated as new information is made available.

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Maryland also ranks among the country's most immigrant-friendly states. Mere coincidence? We think not. Consider some recent statistics from the Immigration Policy Center (IPC), the public policy arm of the American Immigration Council (AIC), a leading nonpartisan think tank in Washington. IPC recently released state-by-state statistical summaries that clearly illustrate the political and economic impact of immigrants in several key jurisdictions, including Maryland. [See New Americans in Maryland, Immigration Policy Center, May.2013.] Among the findings:

• 811,701 immigrants called Maryland home in 2011, a number approaching the total population of San Francisco, CA. This is a sharp increase from 2007, when 694,590 immigrants lived here. [See New Americans in the Old Line State, MurthyBlog, 25.Jan.2010.]

• 1 in 7 Marylanders is Latino or Asian - up from 1 of 9 in 2007 - and their combined purchasing power in Maryland was $30.4 billion in 2012.

• Immigrants made up 18% of Maryland's workforce in 2011, or 574,684 workers.

• Asian-owned businesses in Maryland had sales and receipts of $11.3 billion and employed 71,408 people in 2007, the most recent year for which these statistics are available.

• Among Maryland's foreign-born, age 25 and older, 41% had at least a bachelor's degree in 2011.

• About 27 percent of all scientists in Maryland were foreign-born as of 2006, along with 21 percent of health care practitioners and 19 percent of mathematicians and computer scientists.

• Some 13,969 foreign students contributed $416 million to Maryland's economy in the 2011-12 academic year.

• 45.9 percent of Maryland immigrants - 372,873 people - were naturalized U.S. citizens by 2011, and therefore eligible to vote.

AIC's statistical snapshot is well worth perusing in its entirety, because it clearly shows the vital role immigrants play in making Maryland's economy one of the strongest in the nation. It's compelling reading for policymakers, business people, and anyone who wants a better understanding of the demographic trends that will shape Maryland's future, and the future of our country. We also hope it will dispel some widely held misconceptions about immigrants, ideas that simply don't square with the facts: that immigration and prosperity go hand in hand!

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This narrative remains popular in some quarters because it lends a gloss of policy-wonkish neutrality and legitimacy to arguments that often are flatly xenophobic - or worse. It seems to have persisted not because it's true - it isn't - but because it's a useful political tool. It's a prime example of what social scientists call "negative integration" - defining group identity in terms of who we are not: we are us because we are not them. It also smacks of "scapegoating," blaming others - in this case, immigrants - to avoid responsibility for our own problems.

As we noted in a recent post, Social Security's coffers actually are in better fiscal shape than they would be without the billions of dollars immigrants have contributed to over the years - contributed without taking much out of the system. Immigrant contributions to the long-term solvency of Social Security are both substantial and well documented. [See Los Angeles Times: Immigration Will Help Retiring Baby Boomers, MurthyBlog, 20.May.2013.]

Immigrant contributions also are propping up the Medicare system - to the tune of more than a hundred billion dollars from 2002 to 2009 - according to a team of researchers at Harvard University and the City University of New York. [See Immigrants Contributed an Estimated $115.2 Billion More to the Medicare Trust Fund Than They Took Out in 2002-09, by Leah Zallman, Steffie Woolhandler, David Himmelstein, David Bor, and Danny McCormick, Health Affairs, Jun.2013.] After carefully examining Medicare revenues and expenditures for immigrant and nonimmigrant populations, the study concludes that:

"Immigrants, particularly noncitizens, heavily subsidize Medicare. In 2009 immigrants contributed $13.8 billion more to the HI [Hospital Insurance] Trust Fund than it paid out on their behalf. Most of this surplus came from noncitizens. Between 2002 and 2009 immigrants' cumulative surplus contributions totaled $115.2 billion."

Elsewhere in the study, the Harvard/CUNY team notes that in 2009, "the U.S.-born generated a deficit of $30.9 billion" in the Medicare system. Why this disparity? The demographics of immigration play a key role, according to the researchers: as a group, immigrants tend to be younger and have a higher degree of workforce participation than their American counterparts, so they generate more payroll tax revenue - a principal funding source for the Medicare Trust Fund.

Actual immigrant contributions to the Medicare Trust Fund may be even higher than what the study finds; the researchers took pains to ensure that its methodology would not overstate immigrant contributions. They note, "Our data may undercount noncitizens' surplus since undocumented immigrants may avoid government surveys such as the Current Population Survey," which gathers population data for the government, and which supplied critical statistical benchmarks for the study.

The researchers carefully point out that it's unclear whether immigrants subsidize the health care system as a whole, beyond Medicare. However, they note that, "Although most political discourse regarding immigrant health care financing has focused on uncompensated care, that care accounts for a far smaller proportion of national health care spending than Medicare does (2 percent versus 21 percent)."

They caution, "our finding that immigrants heavily subsidize the HI [Hospital Insurance] Trust Fund should raise skepticism about the widespread assumption that immigrants consistently drain public resources." Hopefully, their study will help convince those in the anti-immigrant camp - especially our lawmakers - to stop blaming immigrants, and start appreciating their many contributions to American society.

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PERM Approved in HealthAmerica Based on Clerical Error

In HealthAmerica, an employer incorrectly listed the date a PERM-related newspaper advertisement ran. The employer had correctly advertised the job opening in the Sunday newspaper, but listed the date on the PERM application as Monday. The employer challenged the denial of the PERM and asked the U.S. Department of Labor (DOL) to consider evidence establishing that this was only a clerical mistake. When the DOL refused to reverse the denial, the employer appealed to BALCA arguing that the denial was unfair considering that the recruitment had been done properly.

In its first decision regarding the PERM program, BALCA agreed with the HealthAmerica employer. BALCA analyzed the PERM regulations and found that documentation submitted by an employer in support of a PERM application constructively includes the recruitment materials, as these must be maintained in audit files under PERM regulations. This allowed BALCA to conclude that evidence of HealthAmerica's correct advertisement was available to be considered by the Certifying Officer (CO) and would fix the incorrect advertisement date listed on the ETA Form 9089. BALCA considered the injustice to the employer of a denial in the complicated PERM application process, in which the impact on the employer far outweighed the severity of its mistake.

BALCA in Sushi Shogun Case Limits HealthAmerica

In Sushi Shogun, BALCA reviewed a denial in which the CO found that the employer had incorrectly listed on the ETA Form 9089 a prevailing wage of $10.04 per hour. This was apparently a clerical error because the employer submitted with the PERM application a DOL issued prevailing wage determination that listed the prevailing wage as $10.14 per hour. Faced with a denial over a difference of $0.10 per hour, the employer requested reconsideration arguing that the problem was a minor typographical error. The employer cited to the decision in HealthAmerica as justifying the approval of the PERM application. The CO refused to reverse the denial, noting that the PERM regulations require that an employer file an application that is complete and accurate.

The employer appealed to BALCA, arguing that no potential job applicant would have known about the lower wage because the notice of filing listed the correct wage and the other recruitment did not list any wage information. The employer further argued that the penalty of having to go through the PERM process anew greatly outweighed any problem caused by the typographical error in the PERM application.

BALCA agreed that no potential job applicant would have known about the lower wage and no one would have been discouraged from applying for the advertised position. BALCA also agreed that the two entries of $10.04 in the PERM application were typographical errors. While BALCA normally would have followed HealthAmerica and reversed the denial under these facts, the Board found that HealthAmerica (decided in 2006) has been overruled by the DOL's promulgation of a revised regulation in 2007, discussed below.

Corrections No Longer Permitted on ETA Form 9089

The DOL regulation at 20 CFR § 656.11(b) forbids any correction to a PERM application after July 16, 2007. After that date, no requests for modification of an ETA Form 9089 can be accepted or acted upon by the DOL.

PERM has always been a complicated and largely unforgiving process. Since the DOL promulgated 20 CFR § 656.11(b) and BALCA's decision in Sushi Shogun, even minor defects in a PERM application may undo months of work and thousands of dollars invested. A detailed discussion of planning for the PERM process was included in MurthyDotCom article, PERM Labor Certification Process and Timing, Part 1 and Part 2. There simply is no room for error in PERM cases. Hence the importance of being accurate and verifying all the information before filing the PERM becomes critically important.

Conclusion

Now, more than ever, employers must be extremely careful in preparing and submitting PERM applications as part of their sponsorship of their valued employees for lawful permanent residence. The Murthy Law Firm will continue to monitor changes to the PERM labor certification process, and decisions by BALCA that affect the PERM process, to update our readers.

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Ms. Murthy reports that President Obama made an eloquent case that we must never lose sight of our proud heritage as a nation of immigrants, because - not so long ago - we, or our ancestors, were just like them: strangers in a strange land; immigrants.

The economic benefits of immigration reform are compelling, the President argued: our nation was built by entrepreneurs from foreign lands who made full use of the opportunities here, creating opportunities for millions of others in the process by providing jobs and even founding entirely new industries. But this is not just about economics, nor is it only about border enforcement, he cautioned. Building bigger walls is not the answer, he said. This is not just policy: these are people's lives we're talking about.

Mr. Obama spoke with pride about his administration's efforts to help undocumented immigrants who were brought here as children, through no fault of their own. Though his Deferred Action for Childhood Arrivals (DACA) program is a major step toward immigration reform, he cautioned that much remains to be done. The struggle for comprehensive immigration reform still has a long way to go, the President said, urging his listeners to continue pressing their Senators and Representatives to support immigration reform.

Murthy commented:

"The fact that the President took time for this conference call clearly shows that immigration reform is a priority. He understands how important this is. After all, his own father came here as an exchange student, so in a way, he's honoring his own history, as well. I think everybody realizes immigration reform is absolutely critical to America's future. I'm glad to see Mr. Obama taking the lead on this issue; pushing Congress to do the right thing."

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